[Redacted], Cedrick S., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Apr 13, 2022

Appeal No. 2020003661 (E.E.O.C. Apr. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cedrick S.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Request No. 2022000290 Appeal No. 2020003661 Hearing No. 570-2017-00728X Agency No. 9N9D16013 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003661 (October 20, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c). During the relevant time, Complainant worked as a Custodial Worker (Housekeeper), NA- 3566/NA-01, at the 86th Force Support Squadron (FSS), Mega Lodging Property, Ramstein Air Base (RAB), Germany. Complainant filed a formal complaint, claiming discrimination and harassment based on age and sex and in reprisal for prior protected activity. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022000290 2 Complainant alleged that a Non-Appropriated Fund (NAF) Services Claims Examiner (Person A) sent him a threatening email advising him to resign from his position; the FSS/NAF Human Resources Office (HRO) (Person B) denied him a reasonable accommodation; Person B sent Complainant numerous threatening emails on behalf of the Air Force Personnel Center (AFPC) to either resign or return the money received from a settlement agreement, which was not associated to his workers’ compensation claim; 86 FSS/FSPH (Human Resources Office) alleged that, in accordance with a workers’ compensation settlement agreement, Complainant would resign and FSS/FSPH issued him an AF Form 2545, NAFI Notification of Personnel Action (Termination); 86 FSS/FSPH denied Complainant a rations card; and Complainant was issued an out-processing checklist due to the Agency’s termination proceeding. After an investigation, Complainant requested a hearing. However, the assigned EEOC Administrative Judge (AJ) dismissed the hearing request due to Complainant’s failure to appear for the hearing and issued an order remanding the matter to the Agency for the issuance of a final decision. Thereafter, the Agency issued a final decision dismissing Complainant’s claims that (1) Person B sent him threatening emails to resign or return the money from a settlement agreement and (2) 86 FSS/FSPH (Human Resources Office alleged that, in accordance with a workers’ compensation settlement agreement, Complainant would resign and issued him a NAFI Notification of Personnel Action (Termination), for failure to state a claim. In so doing, the Agency noted that these claims concerned an Office of Workers’ Compensation Program (OWCP) settlement agreement and, therefore, constituted a collateral attack on that process. The Agency found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency also found that the Agency did not deny Complainant a reasonable accommodation because Complainant failed to establish that he was a qualified individual with a disability. In so doing, the Agency found that the record lacked sufficient medical evidence to show that Complainant was qualified to perform the duties of his position or that there was a vacant position for which he was qualified and to which he could have been reassigned. The Agency also found that, because there was no evidence that any of the Agency’s actions were motivated by age, Complainant’s harassment claim failed. Complainant appealed. In EEOC Appeal No. 2020003661, the Commission initially addressed the matter of timeliness with respect to both the appeal and Complainant’s statement in support of his appeal. The Commission found that the appeal was timely, but the statement was not, noting that Complainant had been granted an extension until July 4, 2020, to submit his statement, but he did not submit his statement until July 6, 2020. Therefore, the Commission declined to consider the statement. The Commission found that the Agency’s dismissal of the claims noted above was improper, as they were connected to Complainant’s other claims surrounding his alleged denial of accommodation and harassment. The Commission noted that Complainant denied resigning from the Agency and directed the Agency, on remand, to process Complainant’s claim that he was subjected to discrimination when he was terminated. 2022000290 3 Regarding Complainant’s claim that he was denied a reasonable accommodation, the Commission found the record was unclear as to whether there were modifications to the position that could have been enacted to enable Complainant to perform the essential functions of the Housekeeper position or other duties that Complainant could have performed. The Commission also found the record established that the Agency failed to engage in the interactive process following Complainant’s request for an accommodation and the record was inadequate to determine whether the Agency fulfilled its obligations under the Rehabilitation Act. The Commission noted that the Agency has an obligation to develop an adequate investigative record and found that the investigative record in this case was inadequate. For these reasons, the Commission remanded the matter for a supplemental investigation. The Commission also directed the Agency to address the previously dismissed claims in its decision. In light of its decision to remand the reasonable accommodation claim and the interrelatedness of the remaining claims, the Commission declined to address the other claims. The Commission vacated the Agency’s final decision and remanded the entire complaint. In the instant request for reconsideration, we have carefully reviewed Complainant’s arguments and determine that the matters largely concern the timeliness of Complainant’s statement submitted in support of his appeal below. We emphasize that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020003661 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency must now comply with the following order. ORDER TO SUPPLEMENT RECORD (B0617) Within 120 days of receipt of this order, the Agency shall conduct and complete a supplemental investigation consistent with the requirements of 29 C.F.R. § 1614.108(b), in EEO MD-110, Chapter 6 and consistent with this Commission’s decision in EEOC Appeal No. 2020003661. The supplemental investigation shall include, but is not limited to, whether and to what extent the Agency provided Complainant with a reasonable accommodation beginning on or around June 2016. This investigation shall encompass the following elements: whether Complainant's medical condition could be accommodated; whether any accommodations were available within 2022000290 4 his medical restrictions on or around June 2016; whether positions were available for reassignment as of June 2016; and any other pertinent information that the investigation reveals. Upon completion of the investigation, the Agency must provide the Complainant with a copy of the supplemental record and findings. The Complainant may, within fifteen (15) days of receipt of the supplemental record, submit a statement concerning the supplemental record. Thereafter, the Agency shall issue a new final decision on the merits of Complainant’s complaint. A copy of the additional evidence obtained pursuant to this Order and a copy of the new final decision shall be sent to the Compliance Officer as referenced herein. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §1614.403(g). Further, the report must include evidence that the directed action has been taken. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 2022000290 5 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2022000290 6 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 13, 2022 Date